Waters v. Churchill, 511 U.S. 661, 8 (1994)

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668

WATERS v. CHURCHILL

Opinion of O'Connor, J.

whether it was deliberate or accidental." Id., at 1127 (footnote omitted).

We granted certiorari, 509 U. S. 903 (1993), to resolve a conflict among the Circuits on this issue. Compare the decision below with Atcherson v. Siebenmann, 605 F. 2d 1058 (CA8 1979); Wulf v. Wichita, 883 F. 2d 842 (CA10 1989); Sims v. Metropolitan Dade County, 972 F. 2d 1230 (CA11 1992).

II

A

There is no dispute in this case about when speech by a government employee is protected by the First Amendment: To be protected, the speech must be on a matter of public concern, and the employee's interest in expressing herself on this matter must not be outweighed by any injury the speech could cause to " 'the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.' " Connick, supra, at 142 (quoting Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968)). It is also agreed that it is the court's task to apply the Connick test to the facts. 461 U. S., at 148, n. 7, and 150, n. 10.

The dispute is over how the factual basis for applying the test—what the speech was, in what tone it was delivered, what the listener's reactions were, see id., at 151-153—is to be determined. Should the court apply the Connick test to the speech as the government employer found it to be, or should it ask the jury to determine the facts for itself? The Court of Appeals held that the employer's factual conclusions were irrelevant, and that the jury should engage in its own factfinding. Petitioners argue that the employer's factual conclusions should be dispositive. Respondents take a middle course: They suggest that the court should accept the employer's factual conclusions, but only if those conclusions were arrived at reasonably, see Brief for Respondents 39, something they say did not happen here.

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